Alco Realty v. Coastal Horizons Investment, LLC Sudhoff Properties of Houston, LLC Sudhoff Partnership GP, LLC Sudhoff Partnership, LP and Jacob Sudhoff

Citation: Not availableDocket: 01-17-00984-CV

Court: Court of Appeals of Texas; December 5, 2018; Texas; State Appellate Court

Original Court Document: View Document

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On December 6, 2018, the Court of Appeals for the First District of Texas issued an opinion in case No. 01-17-00984-CV involving Alco Realty, the appellant, against Coastal Horizons Investment, LLC, and several Sudhoff entities, the appellees. Alco Realty, a commercial broker, claimed entitlement to a real estate commission under a representation agreement with Coastal Horizons, which failed to purchase property within the designated timeframe. Following the expiration of the agreement, a related entity, Commonwealth Commons, acquired a property Alco had informed Coastal Horizons about, but did not compensate Alco.

Alco Realty sued Coastal Horizons for breach of contract, quantum meruit, and fraud, while also targeting the Sudhoff entities as related parties liable for the commission. The representation agreement, executed in late 2013, granted Alco exclusive rights within the Hyde Park neighborhood and specified a 4.3% commission on property purchases made by Coastal Horizons from November 13, 2013, to May 13, 2014. It included a clause entitling Alco to commission if a related party acquired a property during the agreement period.

In the litigation, the trial court set a discovery deadline of May 30, 2018. The Sudhoff entities filed a motion for both traditional and no-evidence summary judgment in October 2017. Alco opposed the motion and submitted an affidavit, which the Sudhoff entities objected to, leading to the trial court striking Alco's exhibits and granting summary judgment in favor of the Sudhoff entities, thereby severing claims against them and rendering the judgment final. Alco appealed, arguing that the trial court erred by considering no-evidence grounds prematurely and improperly striking evidence. The appellate court affirmed the trial court's decision.

Summary judgments are reviewed de novo, meaning the appellate court reassesses the case without deferring to the trial court's decision. If a trial court grants summary judgment without stating the reasons, the appellate court will uphold the decision if any of the grounds for the judgment are valid. The movant must demonstrate that there are no genuine issues of material fact and that the law requires judgment in their favor. This involves conclusively negating at least one essential element of the nonmovant’s claims or proving all elements of a defense. A claim is considered conclusively proved if reasonable people cannot disagree on the evidence's implications.

If the movant meets this initial burden, the nonmovant must then show that a genuine issue of material fact exists to prevent summary judgment. Favorable evidence for the nonmovant is assumed to be true, and any doubts are resolved in their favor. A no-evidence summary judgment may be pursued after sufficient discovery, and it must be granted if the movant identifies elements of a claim that the nonmovant fails to challenge with admissible evidence. The nonmovant must offer more than a trivial amount of evidence to counter a claim of insufficient proof. 

Additionally, a party arguing for more time to conduct discovery must demonstrate this need through a verified motion for continuance or an affidavit, as the trial court has discretion in determining whether adequate time for discovery has been provided.

An affidavit must specify the reasons for requesting a continuance, as established in Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004) and reiterated in Carter v. MacFadyen, 93 S.W.3d 307, 310 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). The moving party must indicate how the requested discovery would benefit their case. In this instance, Alco did not file for a continuance, submit a supporting affidavit, or object to the timing of the summary judgment motion in the trial court. On appeal, Alco references Castillo v. Mizpah Residential Care to argue that the trial court should have continued the motion. However, the appellate court noted that while the trial court extended the discovery period, it was not obligated to delay the summary judgment motion until the extension ended, emphasizing that Alco failed to request a continuance. Consequently, Alco did not preserve the issue for appellate review according to TEX. R. APP. P. 33.1.

Alco also contested the trial court's decision to strike evidence from their summary judgment response but did not respond to the motion to strike, request a hearing, or seek a new trial, leading to the issue being unpreserved for review. Additionally, Alco did not provide supporting authority for this claim, further waiving its complaint. With no other challenge raised against the summary judgment, the court affirmed the trial court's decision.